Saturday, August 02, 2008

Canberra may be built on a falsehood – one the Federal Court will be asked to rule on later this month.

The alleged falsehood is that the ACT (and before it the Commonwealth) actually owns the land on which the national capital sits.

When a long-running Indigenous land claim comes to case management on August 28 the barrister representing the claimants George Villaflor will ask the court to make the determination, claiming that the NSW never actually gave the Commonwealth ownership of the Territory, merely the right to govern it.

In his office above a hairdressing shop in Ainslie the pro-bono lawyer said yesterday that the actions of the Stanhope government had left him with little choice.

“They are actively developing land on the Kingston foreshore and legislating for new power stations as if native title isn't an issue here. So I want to ask the court – has native title been extinguished in the ACT.”

He said the argument that the creation of the ACT extinguished native title was wrong.

There was no evidence that NSW ever handed over its title over the land...
Reading from Quick and Garren’s Annotated Constitution of the Australian
Commonwealth published in 1901, he quotes it as concluding that it is clear
from the construction of section 125 that “the Commonwealth acquires under
this section territorial rights only, not proprietorial rights”.

“The second reading speech of the 1909 NSW Seat of Government Surrender Bill
made it clear that NSW still retained the title to the soil.

“While the NSW Premier Charles Wade didn’t actually say that his state still
owned the land, he implied that it did throughout his speeches. There were
a few that said, well if the ACT fails, at least the Commonwealth will have
improved it for us - that sort of thing.”

Mr Villaflor believes that that is the reason that that land has only ever
been leased in the ACT. “To sell it would mean that you owned it,” he says.

But by granting very long leases over the land – 999 years for residential
blocks, the ACT government was essentially alienating the land anyway, in
the full knowledge that the High Court’s Mabo ruling may have restricted its
ability to do so.

Rather than confront the question and seek a determination from a court, the
Stanhope government was continuing to act as if it - alone among all states
and territories - was immune from Native title claims.

Asked in the Legislative Assembly by Liberal MLA Jacqui Burke two years ago
whether the ACT had the authority to grant and dispose of land while Native
title claims were under way, the Chief Minister replied that the ACT’s
authority was “not affected by the existence of Native title claims”.

“If Native title were found to exist in the ACT then the provisions of the
Commonwealth Native Title Act 1993 would have to be complied with,” he said.

“He was saying he would deal with any problems only after the event. He is
pretending for now that they don’t exist,” said Mr Villaflor.

The barrister advised his clients to terminate their private negotiations
with the ACT government some months ago because he did not believe they were
negotiating in good faith.

“On August 28 I will ask the court to join the Commonwealth and NSW as
defendants and to pay for my clients to be represented.”

“I’ve got senior counsel willing to do it. Continuing to drag this out is
just going nowhere,” he said.